Judgment

SHAH, J.:- The appellants are owners of "China Baug" situated on the southern bank of the river Sabarmati within the limits of the Municipal Corporation of Ahmedabad. The Ahmedabad Municipal Corporation resolved to move the State Government to acquire a part of the land of the appellants for setting up a Samadhi of Mahatma Gandhi. On September 10, 1959, the Commissioner, Ahmedabad Division, in the State of Bombay, issued a notification under Section 4 of the Land Acquisition Act, stating:

"Whereas it appears to the Commissioner, Ahmedabad Division, that the lands specified in the schedule hereto are likely to be needed for public purpose viz., for "The Memorial of Rashtrapita Mahatma Gandhi :

It is hereby notified under the provisions of Section 4 of the Land Acquisition Act, 1894 (I of 1894) "that the said lands are likely to be needed for the purpose specified above".

Enquiry was made under Section 5A of the Land Acquisition Act and after receiving report of the Collector, the Commissioner, Baroda Division of the State of Gujarat (who by virtue of the Bombay Recognization Act, 1960, was the appropriate authority) issued a notification under Section 6 of the Land Acquisition Act on August 31, 1961, that the lands were required for the public purpose specified in column 4 of the schedule to the notification i. e., "Memorial of Mahatma Gandhi".

2. The appellants moved a petition in the High Court of Gujarat for a writ quashing the proceeding under the Land Acquisition Act and the two notifications dated September 10, 1959 and August 31, 1961 and for a writ restraining the Commissioner, Baroda Division, and the Government of the State of Gujarat from enforcing the notifications. The High Court rejecting the petition. With certificate granted by the High Court under Article 133 (1) (c) of the Constitution this appeal is preferred by the appellants.

3. Counsel for the appellants contended that:

(1) that the Commissioners of Divisions Act 8 of 1958 pursuant to which the Commissioner s of Divisions were vested with authority to discharge statutory function vested in the State Government was ultra vires the legislature.

(2) that in any event the Commissioner, Baroda Division, State of Gujarat was incompetent to issue the notification under Section 6 without issuing a fresh notification under Section 4;

(3) that since the land was notified for acquisition for the purposes of the Municipal Corporation, the provisions of Sections 77 and 78 of the Provincial Municipal Corporations Act, 1949, should have been complied with. In any event acquisition of land for "a Memorial to Mahatma Gandhi" was not acquisition for a Municipal purpose and the notifications were without the authority of law;

(4) that the "instrumentality" which was to carry out the purpose not having been set out in the notifications under Sections 4 and 6 the notifications were illegal and on that account unenforceable; and

(5) that the Commissioner, Baroda Division, in issuing the notification under Section 6 did not apply his mind to the evidence before him and on that account the notification was liable to struck down.

4. To appreciate the two branches of the first contention, it is necessary to set out the relevant statutory provisions. By Section 4 of the Land Acquisition Act, as amended by the Adaptation of Laws Order, 1950, it was enacted that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient place in the said locality. Section 6 (1), insofar as it is relevant, provided:

"Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under Section 5A, sub-section (2), that any particular land is needed for a public purpose, or fo